Research On The Determination Of Infringement In Adapting Literary Works

With the prosperity and development of China’s cultural industry and undertakings,the spiritual and cultural needs of the public are also continuously increasing,and more and more literary works are adapted into film and television works and online game works.As a result,the number of cases of infringement of the right to adapt literary works has increased year by year,and the circumstances of the case have become increasingly complex,which puts forward higher requirements for judicial practice.Therefore,it is necessary to study the identification of infringement in the adaptation of literary works in order to strengthen the protection of the legitimate rights and interests of authors of literary works,and optimize the business environment for the cultural industry and cultural undertakings.Based on the analysis of past judicial cases,this article focuses on the issues and reasons for determining the infringement of adaptation of literary works.Relying on the actual situation in China and drawing on foreign judicial experience,this article proposes targeted measures and suggestions for specific issues.This article consists of three parts.The first part elaborates on the basic theory of infringement determination in adaptation of literary works.One is the interpretation of literary works and their adaptation,which clarifies the concept of literary works under copyright law and its constituent elements,as well as the definition of adaptation using literary works;The second is the discrimination between adaptation behavior and similar behavior,that is,adaptation behavior and reproduction behavior,adaptation behavior and modification behavior,adaptation behavior and destructive work identity behavior;The third is to interpret the rules for determining the infringement of literary works,namely,the "contact" element and the "substantial similarity" element.The second part analyzes the actual situation of using literary works to identify infringement in judicial practice in China from three aspects: the application of the dichotomy of thought and expression,the application of the "contact" element,and the application of the "substantive similarity" element,and summarizes the problems and reasons that arise in judicial practice.The first is the analysis of the applicability of the dichotomy between thought and expression.Due to the vague boundaries between thought and expression and the lack of original standards,the dichotomy between thought and expression cannot accurately distinguish between thought and expression.The second is the analysis of the application of "contact" elements.Due to the low independent status of the "contact" element and the low standard of proof of "contact",some courts have assumed contact based on "substantial similarity" when determining infringement,so as to publish the determination of "contact" earlier,resulting in low accuracy and credibility of the determination of "contact".The third is the analysis of the application of "substantial similarity" elements.Due to the fact that the overall perception method is easy to expand the scope of protection,while the abstract filtering method is easy to narrow the scope of protection,and the lack of applicable standards for the determination of "substantial similarity" leads to inaccurate determination of "substantial similarity".These issues are not conducive to the protection of the right to adaptation of literary works by authors,nor to the prosperity and development of China’s cultural industry and undertakings.The third part is based on the judicial practice in China,for the problems existing in the identification of infringement of adaptation using literary works,put forward suggestions to improve the identification of infringement of adaptation using literary works.The first is to optimize the application of the dichotomy between thought and expression,that is,to accurately divide thought and expression by expanding the scope of expression and determining the standard of originality.The second is to improve the "contact" identification rules,which emphasize the independent status of "contact" and improve the "contact" certification standards to improve the accuracy and credibility of "contact" identification.Third,improve the identification method of "substantial similarity",that is,comprehensively use the overall perception method and the abstract separation method,and select the identification method of substantial similarity based on the type of literary work to accurately identify "substantial similarity.".